TheBrain

Welcome to TheBrain, the digital home for your mind.

PLEASE READ THIS DOCUMENT CAREFULLY BEFORE CONTINUING. IF YOU DO NOT AGREE TO ACCEPT THE TERMS OF THIS AGREEMENT, YOU MUST EXIT WITHOUT DOWNLOADING OR INSTALLING THE SOFTWARE.

THIS AGREEMENT PERMITS YOU TO (i) use a free, limited-use copy of TheBrain Software (the "Free Edition") for your own personal purposes, not as part of a business or for other commercial enterprise; (ii) evaluate TheBrain Software for a limited time during the trial period for both personal and commercial purposes; (iii) purchase a more powerful copy of TheBrain Software and use it for both personal and commercial purposes while unlocking additional functionality (the "Pro Edition").

THE FREE EDITION IS FOR PERSONAL USE ONLY. If you are interested in licensing TheBrain Software for any other purpose, you must purchase the Pro Edition once the trial period has expired.

THE SOFTWARE AND ITS ACCOMPANYING DOCUMENTATION ARE PROTECTED BY UNITED STATES AND INTERNATIONAL COPYRIGHT LAW, TRADEMARK LAW AND INTERNATIONAL TREATY AND ARE THE SUBJECT MATTER OF PATENTS AND PENDING PATENTS. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION OF THE SOFTWARE AND RELATED DOCUMENTATION MAY RESULT IN CIVIL AND/OR CRIMINAL PENALTIES.

INTRODUCTION. This Agreement is between TheBrain Technologies LP ("TheBrain"), and you ("you") (including the company or enterprise you represent or which employs you), the user of TheBrain Software Free or Pro Edition and the accompanying documentation (collectively "Software") only as authorized hereunder.

Based on the foregoing and other good and valuable consideration, you agree:

1. LICENSE GRANT. Subject to the restrictions below, TheBrain grants you a personal, non-exclusive, non-transferable, royalty-free, revocable license ("License") to use Software. This License permits you to make up to five object code copies of Software during the term of this Agreement, installed on up to four personal computers and archival digital storage devices, but for use only by you. You must reproduce on all copies of Software the copyright, trademark and patent notices and other proprietary legends that appear on the original copy of Software. This Agreement does not include any rights to receive maintenance or updates in connection with Software.

2. EVALUATION LICENSE. If you have not paid for and activated the Pro Edition, your copy is intended for your personal use only and may not be used in a commercial environment except for evaluation purposes during the trial period. Until you pay for and activate the Pro Edition, the features of the software will be limited. Users of the Free Edition are entitled to no services whatsoever, including, without limitation, technical advice or support.

3. REGISTRATION. To pay for and activate the Pro Edition, select the "Upgrade" command in Software. Once you have paid, you must login using your Brain account to activate your license. You may activate your license on up to four personal computers, but it is for use by you and only you. An Internet connection is required to complete the activation process. Your login information is for your use only. You agree not to disclose your login information or otherwise share your Brain account with any other person under any circumstance.

4. NO IMPLIED LICENSE. You acknowledge that this License in no way shall be construed to provide an express or implied license to use, modify or improve any of TheBrain's copyrights, trademarks, trade secrets and/or patents.

5. RESTRICTIONS. Software contains proprietary information, which is protected by a combination of copyright, trademark, patent, trade secret and/or other proprietary rights, and constitutes valuable property of TheBrain. You acknowledge that Software is disclosed to you only for purposes consistent with the terms and conditions of this License and that you do not acquire any rights of ownership or title in Software. You may not (i) translate, modify, disassemble, decompile or reverse-engineer Software; (ii) rent, lease, loan, sell, sublicense, grant a security interest in, distribute or otherwise transfer Software to any third party; (iii) make any copy of Software except for up to three copies for your personal use only; (iv) create derivative works of Software, except in accordance with this Agreement; (v) attempt to or help others to circumvent the License and/or activation process; (vi) remove any logo, copyright, patent, trademark or other proprietary notice or label from Software, information exported by Software, or any accompanying documentation or materials.

6. SITEBRAIN. Software includes software for viewing Brain data through a Web browser in a form called a SiteBrain. SiteBrains are created using the export facilities of Software and include software embedded in them. SiteBrains and their embedded software may be distributed freely on the public Internet, local networks, via email, and on removable media such as CDs. SiteBrains are provided as-is and TheBrain does not warrant or guarantee their operation under any circumstance. You may not distribute or otherwise utilize SiteBrain for any purpose other than to display information generated by Software.

7. OWNERSHIP. TheBrain owns all right, title and interest in and to all Intellectual Property Rights subsisting in Software and all portions thereof. For purposes of this Agreement, "Intellectual Property Rights" means any and all rights affecting intellectual or industrial property existing now or in the future in the United States or anywhere in the universe. Intellectual Property Rights include, without limitation, any and all rights (i) under the laws of copyright, patent, trade secret, trademark, trade dress, unfair competition, "droit moral" or moral rights, or other similar laws; (ii) of publicity or privacy; (iii) relating to the development and use of databases, or know-how; and (iv) subsisting in any and all applications, registrations, renewals, extensions, restorations, continuations, divisionals, or foreign counterparts of any of the foregoing. TheBrain is a registered trademark of TheBrain Technologies LP. Unauthorized copying of Software will cause TheBrain great and irreparable harm. TheBrain is entitled to receive immediate equitable relief from any court of competent jurisdiction to prevent or stop your threatened or actual infringement of any of those rights.

8. MAINTENANCE SERVICES. You will receive technical support via electronic mail for the first 30 days following your download of Software. Thereafter, you may continue to receive technical support via electronic mail and minor upgrades to Software (collectively, "Maintenance Services") as part of a paid annual maintenance agreement.

9. DISCLAIMER OF WARRANTIES. All products and services relating to this Agreement ("Services") including, without limitation, Software, TheBrain's Web site, and Maintenance Services are provided "AS IS," without warranty of any kind. THEBRAIN EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, OR ANY WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD PARTY'S PATENT(S), TRADE SECRET(S), COPYRIGHT(S) OR OTHER INTELLECTUAL PROPERTY RIGHTS. THEBRAIN DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES. THEBRAIN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN SOFTWARE WILL BE CORRECTED. FURTHERMORE, THEBRAIN DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THEBRAIN OR THEBRAIN'S AUTHORIZED REPRESENTATIVE SHALL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD SOFTWARE PROVE DEFECTIVE, YOU (AND NOT THEBRAIN OR THEBRAIN'S AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.

10. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL THEBRAIN BE LIABLE FOR ANY LOST REVENUE OR PROFITS OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE SOFTWARE OR ANY SERVICES RELATING TO THIS AGREEMENT REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES AND EVEN IF THEBRAIN OR THEBRAIN'S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THEBRAIN'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT THEBRAIN RECEIVED FROM YOU FOR USE OF SOFTWARE.

11. PRIVACY. TheBrain may collect information ("Consumer Information") about visitors to its Web site and their activities while visiting the Web site. TheBrain may use your Consumer Information to improve your experience with the Web site and TheBrain products and services. TheBrain will not disclose or sell your Consumer Information to any third party. TheBrain, however, may use your Consumer Information in the aggregate to compile demographic information for potential customers, business partners and advertisers. Software may initiate contact with TheBrain through the Internet from time to time to check for updates and to activate the software if you purchase a License. During checks for updates, Software will submit the following information about your use of the software: (i) what version and edition you are using, (ii) how long it has been installed, (iii) how many Thoughts have been created, and (iv) how many Thoughts have been activated. Additionally, but only with your consent, Software may submit generic usage information about which features of the software are being used. TheBrain will use this information exclusively for the purpose of improving its products and will always ask your permission before such information is submitted. Except for the purpose of activating the software, no personally identifying information will be sent. For more information on TheBrain's privacy policy, please see http://www.thebrain.com/legal.

12. TERMINATION. This Agreement will commence upon installation of Software. Your rights under Section 1 and/or 2 will immediately and automatically terminate upon your breach of any provision of this Agreement, at which time you must return to TheBrain or destroy all copies of Software in your possession.

13. GOVERNMENT LICENSEE. If Software is licensed by or for any unit or agency of the United States Government, then Software will be classified as "commercial computer software", as that term is defined in the applicable provisions of the Federal Acquisition Regulation (the "FAR") and supplements, including the Department of Defense ("DoD") FAR Supplement (the "DFARS"). Software was developed exclusively at private expense, and no part of Software was first produced in the performance of a United States Government contract. If Software is supplied for use by DoD, Software is delivered subject to the terms of this Agreement and either (i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252.227-7013(c) (Nov. 1995), as applicable. If Software is supplied for use by a Federal agency other than DoD, Software is restricted computer software delivered subject to the terms of this Agreement and (i) FAR 12.212; (ii) FAR 52.227-19; or (iii) FAR 52.227-14, as applicable.

14. GOVERNING LAW. This Agreement and any claim or cause of action arising under or related to this Agreement in any way shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. In connection with any claim or cause of action that arises under or is related to this Agreement in any way, you hereby consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County of the State of California.

15. SEVERABILITY. To the extent that any of the provisions of this Agreement, or any word, phrase, clause, or sentence thereof, is found to be illegal or unenforceable for any reason, that provision, word, phrase, clause, or sentence will be reformed or deleted only to the extent necessary to make this Agreement as reformed legally enforceable. That reformation or deletion will not affect the balance of the provisions or parts of this Agreement, which are to be construed as severable and independent.

16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes any and all written or oral agreements previously existing between the parties with respect to such subject matter. No delay on the part of TheBrain in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any waiver on the part of TheBrain of any right preclude any other or further exercise of any right under this Agreement.

17. THIRD PARTY COMPONENTS. Software from third party organizations is included with Software and is subject to the additional provisions outlined in the respective sections of the 3rdPartyNotices.txt file, a copy of which is installed in the Software program folder.

BY CLICKING "I accept the agreement" or "Agree" BELOW, YOU ACKNOWLEDGE THAT YOU (I) HAVE READ THIS AGREEMENT, UNDERSTAND IT, (II) HAVE ALL RIGHT, POWER AND AUTHORITY TO BIND YOURSELF, INCLUDING YOUR COMPANY OR ENTERPRISE TO IT, AND (III) AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.